Citation Nr: 18159057 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-06 273 DATE: December 19, 2018 ORDER Entitlement to an increased rating of 70 percent, but no higher, for service connected post-traumatic stress disorder (PTSD) is granted subject to controlling regulations governing the payment of monetary awards. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the pendency of the claim, service-connected PTSD has been productive of occupational and social impairment with deficiencies in most areas, including work, social relations, and mood, but has not more nearly approximated total social and occupational impairment. CONCLUSION OF LAW The criteria for an increased rating of 70 percent, but no higher, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to April 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated March 2015 from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In that decision, the RO continued the Veteran’s 50 percent rating for PTSD. 1. INCREASED RATING Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 2. PTSD The Veteran’s PTSD is rated 50 percent under 38 C.F.R. § 4.130, DC 9411, pursuant to the General Rating Formula for Mental Disorders. When determining the appropriate disability evaluation to assign under the general rating formula, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, all ratings in the general rating formula are also associated with observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent or total evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. For the following reasons, the Board concludes that a 70 percent disability for PTSD, but no higher, is warranted throughout the entire appellate period. The medical and lay evidence of record indicate that symptoms of PTSD included sleep impairment, anxiety, depressed mood, decreased motivation, diminished interest in activities, difficulty concentrating, intrusive thoughts/flashbacks, hypervigilance, difficulty obtaining and maintaining effective relationships, isolative behavior, mild memory impairment, difficulty adapting to stressful situations, and decreased socialization throughout the entire appellate period. These symptoms more approximate those listed in the criteria for a 70 percent rating. The Veteran has indicated that his PTSD has not only caused him social and occupational problems, but has changed his everyday life. For example, he stated he is unable to sleep under covers or be in enclosed areas for even brief periods of time. He has been estranged from his family since his return from military service, and currently has no relationship with his living family members – citing his mental health issues as the cause. While the Veteran has worked as an attorney, he was unable to work in an office environment and began a private practice to avoid working with others. Regarding social impairment, the Veteran consistently endorsed feelings of isolation and detachment from others, diminished interest in activities, and impaired concentration. The Veteran consistently described how he preferred to be alone and sought out activities where he did not have to interact with others. While the Veteran maintained a romantic relationship for a period of time, the relationship was ultimately ended due to his inability to share space and his outbursts during nightmares. The Veteran also reports having no relationship with living family members, and rarely having contact with others. He avoids contact with people and places that he associates with any distress, and additionally feels strong detachment from others. Regarding occupational impairment, the Veteran reports being unable to maintain employment in an office setting due to his inability to work with others and problems with impulse control. These problems caused him to begin his own private law practice, from which he retired in 2016. In a January 2018 disability benefits questionnaire (DBQ), the physician recorded occupational impairment with reduced reliability and productivity. The Veteran additionally experiences recurrent, involuntary and intrusive distressing memories and dreams. His surroundings and internal thoughts often trigger his symptoms and caused intense psychological distress. The DBQ further signifies that the Veteran has disturbances to his mood, increased depressed moods, anxiety, and suspiciousness, and chronic sleep impairment. Based on the foregoing, the Board concludes that a 70 percent disability rating is warranted for the appellate period due to the Veteran’s inability to maintain meaningful relationships and his inability to work in any sort of collaborative environment. This approximates the occupational and social impairment with deficiencies in most areas required for a 70 percent rating. Regarding the next highest disability rating, a 100 percent rating, the Board finds that the Veteran has not had the symptoms listed in the criteria for a 100 percent rating. The evidence, including all psychological examinations spanning from 2010 to 2018, indicates that his speech tone and rate have consistently been clear or within normal limits. His thought processes are logical and goal-oriented. While he has had some impulse control issues, he has been able to address these problems with his therapist in a logical manner. In addition, the overall level of impairment has not more nearly approximated the total social impairment required for a 100 percent rating. He was able to have some contact through his work as a private attorney, has attended group therapy, and has kept in contact with some former military coworkers. He was also able to maintain a romantic relationship for some time, even though it was ultimately unsuccessful. While he has had some thoughts of hurting himself, this has not been a persistent symptom. Moreover, throughout the period on appeal, the Veteran has been found to be able to perform all activities of daily living, maintain personal hygiene, and handle his financial affairs. He has consistently denied hallucinations or delusions throughout the appellate period. Although some memory impairment has been reported, it has been described as mild. There has never been evidence of disorientation to time or place or memory loss for names of close relatives, his own occupation, or his own name. Moreover, at no time has the Veteran reported or the medical evidence demonstrated the other symptoms listed for a 100 percent rating, such as obsessional rituals which interfere with routine activities, spatial disorientation, or speech that is intermittently illogical, obscure, or irrelevant. The preponderance of the evidence thus reflects that the Veteran had neither the symptoms nor overall level of impairment that more nearly approximated the total occupational and social impairment required for a 100 percent rating. The benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. 3. TDIU Although the Veteran had filed a formal claim for a TDIU during the pendency of this appeal, which was denied by the RO in February 2018, the issue of entitlement to a TDIU was has also been raised by the record as part of his claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). As indicated above, there is some evidence that the Veteran’s service-connected PTSD has impacted his employability. The issue of entitlement to a TDIU has thus been raised by the evidence of record. Additionally, the Veteran previously did not meet the schedular standards for a TDIU. See 38 C.F.R. § 4.16 (a). As the Board has granted an increased, 70 percent rating for PTSD in the decision above, the Veteran now meets the schedular standards and this issue should again be adjudicated by the AOJ in light of this new rating and finding as to the severity of the Veteran’s PTSD. Accordingly, this case is REMANDED for the following action: Adjudicate the issue of entitlement to a TDIU in light of the 70 percent rating granted by the Board in this decision and all pertinent evidence and legal authority, to include whether the work that he performed as an attorney constituted employment in a protected environment. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Saracina, Law Clerk